Jacob Shaffer, who got life in prison for pleading guilty to five murders in Tennessee, sits with his attorneys in Judge Karen Hall's courtroom in the Madison County Courthouse during a hearing on his capital murder charge in Madison County for the death of Sidney Wade Dempsey Friday March 9, 2012 in Huntsville, Alabama. (The Huntsville Times/Robin Conn)

HUNTSVILLE, Alabama -- A Madison County judge has this morning denied a request by Jacob Shaffer's lawyers to dismiss the capital murder indictment against him.

Shaffer could face the death penalty if convicted of the July 17, 2009 murder of Sidney Wade Dempsey, 50, at Hall Marble in Huntsville.

His attorneys had argued that in the indictment prosecutors took one alleged act - that Shaffer broke into the dwelling where Dempsey lived and murdered him - and created two charges, burglary and murder. Under Alabama law, a murder committed during a felony like first-degree burglary is considered capital murder and makes a defendant eligible for the death penalty.

A first-degree burglary charge includes knowingly and unlawfully entering a dwelling to commit a crime and causing physical injury to any person not part of that crime. Dempsey lived in a building at the marble company.

Circuit Judge Karen Hall denied the defense motion to dismiss the indictment. The matter had been argued March 9, during Shaffer's first court appearance in Madison County.

Shaffer, 32, has already pleaded guilty to committing five murders in Lincoln County, Tenn. the day after Dempsey was killed. He entered a guilty plea on those charges last July and was given five life sentences.

Shaffer is accused of killing Dempsey, then hitching a ride to Lincoln County, where he attacked his estranged wife, members of her family and a family friend.

Last week Madison County Assistant District Attorney Jay Town, who is prosecuting the case with Assistant District Attorney Thomas Glover, said the killing of Dempsey, was a "dry run" for Shaffer in preparing to commit murder in Tennessee.

Shaffer's count-appointed attorneys Corrie Collins and Ron Smith also had argued the Madison County indictment did not clearly list a cause of death for Dempsey. They also argued that the indictment's charge that Dempsey died from "beating and/or suffocating" was too vague and did not give the defendant adequate notice of what charge he should defend against.